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[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 770 Introduced in Senate (IS)]

112th CONGRESS
  1st Session
                                 S. 770

To amend the Fair Labor Standards Act of 1938 to ensure that employees 
    are not misclassified as non-employees, and for other purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             April 8, 2011

    Mr. Brown of Ohio (for himself, Mr. Harkin, and Mr. Blumenthal) 
introduced the following bill; which was read twice and referred to the 
          Committee on Health, Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL

 
To amend the Fair Labor Standards Act of 1938 to ensure that employees 
    are not misclassified as non-employees, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Payroll Fraud Prevention Act''.

SEC. 2. CLASSIFICATION OF EMPLOYEES AND NON-EMPLOYEES.

    (a) Definitions.--Section 3 of the Fair Labor Standards Act of 1938 
(29 U.S.C. 203) is amended by adding at the end the following:
    ``(z) `Non-employee' means an individual who--
            ``(1) a person has engaged, in the course of the person's 
        trade or business, for the performance of labor or services; 
        and
            ``(2) is not an employee of the person.
    ``(aa) `Covered individual' when used with respect to an employer 
or other person means--
            ``(1) an employee of the employer; or
            ``(2) a non-employee of the person (including a person who 
        is an employer)--
                    ``(A) whom the person has engaged, in the course of 
                the person's trade or business, for the performance of 
                labor or services; and
                    ``(B)(i) with respect to whom the person is 
                required to file an information return under section 
                6041A(a) of the Internal Revenue Code of 1986; or
                    ``(ii) who is providing labor or services to the 
                person through an entity that is a trust, estate, 
                partnership, association, company, or corporation (as 
                such terms are used in section 7701(a)(1) of the 
                Internal Revenue Code of 1986) if--
                            ``(I) such individual has an ownership 
                        interest in the entity;
                            ``(II) creation or maintenance of such 
                        entity is a condition for the provision of such 
                        labor or services to the person; and
                            ``(III) the person would be required to 
                        file an information return for the entity under 
                        section 6041A(a) of the Internal Revenue Code 
                        of 1986 if the entity were an individual.''.
    (b) Classification as Employees.--Section 11(c) of the Fair Labor 
Standards Act of 1938 (29 U.S.C. 211(c)) is amended--
            (1) by striking ``(c) Every employer subject to any 
        provision of this Act or of any order issued under this Act'' 
        and inserting the following:
    ``(c) Recordkeeping; Classification; Notice.--
            ``(1) Recordkeeping.--Every person subject to any provision 
        of this Act or of any order issued under this Act''; and
            (2) by adding at the end the following:
            ``(2) Classification.--
                    ``(A) In general.--Every person (including every 
                employer and enterprise), who employs any employee 
                engaged in commerce or in the production of goods for 
                commerce or engages any non-employee engaged in 
                commerce or in the production of goods for commerce, 
                shall--
                            ``(i) accurately classify all covered 
                        individuals as employees or non-employees (as 
                        the case may be);
                            ``(ii) provide, to each covered individual, 
                        a written notice that--
                                    ``(I) informs the covered 
                                individual of the individual's 
                                classification, by the person 
                                submitting the notice, as an employee 
                                or a non-employee;
                                    ``(II) includes a statement 
                                directing such individual to the 
                                Department of Labor Web site 
                                established under section 3 of the 
                                Payroll Fraud Prevention Act, or other 
                                appropriate resources, for the purpose 
                                of providing further information about 
                                the rights of employees under the law;
                                    ``(III) includes the address and 
                                telephone number for the applicable 
                                local office of the Department of 
                                Labor; and
                                    ``(IV) includes for each covered 
                                individual classified as a non-employee 
                                by the person providing the notice, the 
                                following statement: `Your rights to 
                                wage, hour, and other labor protections 
                                depend upon your proper classification 
                                as an employee or non-employee. If you 
                                have any questions or concerns about 
                                how you have been classified or suspect 
                                that you may have been misclassified, 
                                contact the U.S. Department of Labor.'; 
                                and
                            ``(iii) maintain a copy of such notice as a 
                        required record under paragraph (1).
                    ``(B) Timing of notice.--
                            ``(i) In general.--The notice described in 
                        subparagraph (A)(ii) shall be provided, at a 
                        minimum, not later than 6 months after the date 
                        of enactment of the Payroll Fraud Prevention 
                        Act, and thereafter--
                                    ``(I) for new employees, upon 
                                employment; and
                                    ``(II) for new non-employees, upon 
                                commencement of the labor or services 
                                provided by the non-employee.
                            ``(ii) Change in status.--Each person 
                        required to provide a notice under subparagraph 
                        (A)(ii) to a covered individual shall also 
                        provide such notice to such individual upon 
                        changing such individual's status as an 
                        employee or non-employee.
                    ``(C) Presumption.--
                            ``(i) In general.--For purposes of this Act 
                        and the regulations or orders issued under this 
                        Act, a covered individual to whom a person is 
                        required to provide a notice under subparagraph 
                        (A)(ii) shall be presumed to be an employee of 
                        the person if the person has not provided the 
                        individual with such notice within the time 
                        required under subparagraph (B).
                            ``(ii) Rebuttal.--The presumption under 
                        clause (i) shall be rebutted only through the 
                        presentation of clear and convincing evidence 
                        that a covered individual described in such 
                        subparagraph is not an employee of the 
                        person.''.
    (c) Special Prohibited Acts.--Section 15(a) of the Fair Labor 
Standards Act of 1938 (29 U.S.C. 215(a)) is amended--
            (1) by striking paragraph (3) and inserting the following:
            ``(3) to discharge or in any other manner discriminate 
        against any covered individual (including an employee) because 
        such individual has--
                    ``(A) opposed any practice, or filed any petition 
                or complaint or instituted or caused to be instituted 
                any proceeding--
                            ``(i) under or related to this Act 
                        (including concerning a covered individual's 
                        status as an employee or non-employee for 
                        purposes of this Act); or
                            ``(ii) concerning a covered individual's 
                        status as an employee or non-employee for 
                        employment tax purposes within the meaning of 
                        subtitle C of the Internal Revenue Code of 
                        1986; or
                    ``(B) testified or is about to testify in any 
                proceeding described in subparagraph (A); or
                    ``(C) served, or is about to serve, on an industry 
                committee;'';
            (2) in paragraph (5), by striking the period at the end and 
        inserting ``; and''; and
            (3) by adding at the end the following:
            ``(6) to wrongly classify an employee of the person as a 
        non-employee in accordance with section 11(c)(2).''.
    (d) Special Penalty for Certain Misclassification, Recordkeeping, 
and Notice Violations.--Section 16 of the Fair Labor Standards Act of 
1938 (29 U.S.C. 216) is amended--
            (1) in subsection (b)--
                    (A) in the sixth sentence, by striking ``any 
                employee'' each place the term occurs and inserting 
                ``any covered individual'';
                    (B) in the fourth sentence, by striking 
                ``employee'' and inserting ``covered individual'';
                    (C) in the third sentence--
                            (i) by striking ``either of the preceding 
                        sentences'' and inserting ``any of the 
                        preceding sentences'';
                            (ii) by striking ``one or more employees'' 
                        and inserting ``one or more covered 
                        individuals''; and
                            (iii) by striking ``other employees'' and 
                        inserting ``other covered individuals''; and
                    (D) by inserting after the first sentence the 
                following: ``Such liquidated damages are doubled 
                (subject to section 11 of the Portal-to-Portal Pay Act 
                of 1947 (29 U.S.C. 260)) where, in addition to 
                violating the provisions of section 6 or 7, the 
                employer has violated the provisions of section 
                15(a)(6) with respect to such employee or employees.''; 
                and
            (2) in subsection (e), by striking paragraph (2) and 
        inserting the following:
    ``(2) Any person who violates section 6, 7, 11(c), or 15(a)(6) 
shall be subject to a civil penalty, for each employee or other 
individual who was the subject of such a violation, in an amount--
            ``(A) not to exceed $1,100; or
            ``(B) in the case of a person who has repeatedly or 
        willfully committed such violation, not to exceed $5,000.''.

SEC. 3. EMPLOYEE RIGHTS WEB SITE.

    Not later than 180 days after the date of enactment of this Act, 
the Secretary of Labor shall establish, a single Web page on the 
Department of Labor Web site that summarizes in plain language the 
rights of employees and non-employees under the Fair Labor Standards 
Act of 1938, including the rights described in the amendments made by 
section 2.

SEC. 4. MISCLASSIFICATION OF EMPLOYEES FOR UNEMPLOYMENT COMPENSATION 
              PURPOSES.

    (a) In General.--Section 303(a) of the Social Security Act (42 
U.S.C. 503(a)) is amended--
            (1) in paragraph (10), by striking the period and inserting 
        ``; and''; and
            (2) by adding after paragraph (10) the following:
            ``(11)(A) Such auditing and investigative procedures as may 
        be necessary to identify employers that have not registered 
        under the State law or that are paying unreported wages, where 
        these actions or omissions by the employers have the effect of 
        excluding employees from unemployment compensation coverage; 
        and
            ``(B) the making of quarterly reports to the Secretary of 
        Labor (in such form as the Secretary of Labor may require) 
        describing the results of the procedures under subparagraph 
        (A); and
            ``(12) the establishment of administrative penalties for 
        misclassifying employees, or paying unreported wages to 
        employees without proper recordkeeping, for unemployment 
        compensation purposes.''.
    (b) Review of Auditing Programs.--The Secretary of Labor shall 
include, in the Department of Labor's system for measuring States' 
performance in conducting unemployment compensation tax audits, a 
specific measure of their effectiveness in identifying the 
underreporting of wages and the underpayment of unemployment 
compensation contributions (including their effectiveness in 
identifying instances of such underreporting or underpayments despite 
the absence of cancelled checks, original time sheets, or other similar 
documentation).
    (c) Effective Date.--
            (1) In general.--Except as provided in paragraph (2), the 
        amendments made by subsection (a) shall take effect 12 months 
        after the date of the enactment of this Act.
            (2) Exception.--If the Secretary of Labor finds that 
        legislation is necessary in order for the unemployment 
        compensation law of a State to comply with the amendments made 
        by subsection (a), such amendments shall not apply with respect 
        to such law until the later of--
                    (A) the day after the close of the first regular 
                session of the legislature of such State which begins 
                after the date of the enactment of this Act; or
                    (B) 12 months after the date of the enactment of 
                this Act.
    (d) Definition of State.--For purposes of this section, the term 
``State'' has the meaning given such term by section 3306(j) of the 
Internal Revenue Code of 1986.

SEC. 5. DEPARTMENT OF LABOR COORDINATION, REFERRAL, AND REGULATIONS.

    (a) Coordination and Referral.--Notwithstanding any other provision 
of law, any office, administration, or division of the Department of 
Labor that, while in the performance of its official duties, obtains 
information regarding the misclassification by a person subject to the 
provisions of the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et 
seq.), or any order issued under such Act of any individual regarding 
whether such individual is an employee or a non-employee engaged for 
the performance of labor or services for purposes of section 6 or 7 of 
such Act (29 U.S.C. 206, 207), or in records required under section 
11(c) of such Act (29 U.S.C. 211(c)), shall report such information to 
the Wage and Hour Division of the Department. The Wage and Hour 
Division may report such information to the Internal Revenue Service as 
the Division considers appropriate.
    (b) Regulations.--The Secretary of Labor shall promulgate 
regulations to carry out this Act and the amendments made by this Act.

SEC. 6. TARGETED AUDITS.

    The audits of employers subject to the Fair Labor Standards Act of 
1938 (29 U.S.C. 201 et seq.) that are conducted by the Wage and Hour 
Division of the Department of Labor shall include certain industries 
with frequent incidence of misclassifying employees as non-employees, 
as determined by the Secretary of Labor.
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